Citation Nr: 0522195
Decision Date: 08/15/05 Archive Date: 08/25/05
DOCKET NO. 00-10 662 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from January 1951 to
October 1952.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in January 2000 by the Louisville,
Kentucky, Regional Office (RO) of the Department of Veterans
Affairs (VA).
In May 2004, the Board remanded this case to the RO for
further development of the evidence. The case was returned
to the Board in July 2005.
For good cause shown, namely the veteran's advanced age, a
motion to advance this appeal on the Board's docket has been
granted under the authority of 38 U.S.C.A. § 7107(a) (West
2002) and 38 C.F.R. § 20.900(c) (2004).
FINDINGS OF FACT
1. The veteran sustained a low back injury in service.
2. The veteran's current low back disability is related to
the injury in service.
CONCLUSION OF LAW
With resolution of reasonable doubt, a low back disability
was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5107
(West 2002); 38 C.F.R. §§ 3.303, 3.304 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002) and its implementing regulations, codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003) are applicable
to the veteran's appeal.
The VCAA and the implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
The Board's decision herein constitutes a complete grant of
the benefit sought on appeal. As such, the Board finds that
no further action is required to comply with the VCAA and the
implementing regulations.
II. Legal Criteria
In order to establish service connection for a claimed
disability, the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2004).
Every veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service, except as
to defects, infirmities, or disorders noted at the time of
the examination, acceptance, and enrollment, or where clear
and unmistakable evidence demonstrates that the injury or
disease existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. § 1111 (West 2002);
38 C.F.R. § 3.304(b) (2004).
In order to rebut the presumption of soundness which applies
to all veterans upon entrance to the military, the government
must show by clear and unmistakable evidence that (1) the
veteran's disability existed prior to service and (2) that
the pre-existing disability was not aggravated during
service. Wagner v. Principi, 370 F.3d 1089, 1095 (Fed. Cir.
2004).
In a case before VA with respect to benefits under laws
administered by VA, the law provides that VA shall consider
all information and lay and medical evidence of record. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, VA shall give the benefit of the doubt to the
claimant. 38 U.S.C.A. § 5107(b) (West 2002).
III. Factual Background and Analysis
The veteran's service medical records show that, at a pre-
induction examination in August 1950, his spine and other
musculoskeletal system was reported as normal. In January
1951, the veteran was seen at a service department outpatient
clinic for a complaint of low back pain. An examination
revealed tenderness in the lumbosacral area. It was noted
that he stated at that time that he had had backache since he
was 14 years of age. At an orthopedic consultation a few
days later, the veteran stated that walking fast or lifting
aggravated the low back pain which he had had for years.
The veteran filed his original claim for VA compensation in
April 1999. In a statement received in August 1999, the
veteran said that in service in basic training he hurt his
back when he slipped and fell and that he was treated for the
back injury at a service department hospital. (The Board
notes that the time frame described by the veteran is in
agreement with service medical record entries noted above.)
The veteran also stated that he has continued to have back
pain since the injury in service in January 1951.
In October 2000, the veteran's private treating physician
reported that the veteran had been diagnosed with
degenerative joint disease (DJD) of the lumbosacral spine and
history of an L-1 compression fracture. The veteran's
private treating physician stated that was very familiar with
the veteran's past medical history and current medical
condition. He stated his opinion that the veteran's low back
pain was aggravated by military service and that his current
low back disorder was a continuation of the injury which he
sustained in service in basic training in 1951.
The veteran underwent a VA spine examination in February
2005. He related that he had fallen from a tank in service
and injured his low back. The pertinent diagnoses were DJD
of the lumbar spine, osteoporosis of the lumbar spine, and a
compression deformity of the L-1 vertebral body. The VA
examiner stated an opinion that it was unlikely that the
veteran's current low back disorders were related to the in-
service injury to his back. He commented that the veteran's
back disabilities were not uncommon in a man of his age. He
said that he did not see anything in the veteran's service
medical records to make him think that the veteran's L-1
compression fracture was sustained in the fall from the tank
in service and he thought that the L-1 compression fracture
was more likely secondary to osteoporosis.
As noted above in the Legal Criteria section of this
decision, in order to rebut the presumption of soundness
which applies to all veterans upon entrance to the military,
the government must show by clear and unmistakable evidence
that (1) the veteran's disability existed prior to service
and (2) that the pre-existing disability was not aggravated
during service. See Wagner, supra.
In the veteran's case, the Board finds that the statements
which the veteran made in service in January 1951 to service
department physicians for the purpose of treatment that he
had had frequent low back pain for a number of years prior to
his entrance upon active military duty in January 1951
constitute clear and unmistakable evidence that the veteran's
low back disability existed prior to service. However, the
Board cannot find from the record in this case that there is
clear and unmistakable evidence that the veteran's pre-
existing low back disability was not aggravated during his
period of active service. The veteran's private treating
physician provided an opinion in October 2000 that the
veteran's pre-existing low back disability was aggravated by
service, whereas the VA physician who examined the veteran in
February 2005 was of the contrary view. It is not necessary
to decide the veteran's current appeal for the Board to
determine whether the opinion of the private physician or the
opinion of the VA physician should be accorded greater
probative weight. Both of the medical opinions in this case
have been provided by physicians who appear qualified to
opine on the medical issues presented by the evidence in the
case. Because the private physician's opinion that the
veterans
pre-existing low back disability worsened in service has some
probative value, it cannot be said that there is clear and
unmistakable evidence that the veteran's pre-existing low
back disability was not aggravated by service. Such being
the case, the presumption that the veteran's low back was in
sound condition at service entrance has not been rebutted.
See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b)
(2004).
The Board notes that the opinions of the veteran's private
treating physician and of the examining VA physician are also
in conflict on the question of whether the veteran's current
low back disability is etiologically related to his claimed
low back injury in service in January 1951 when he reportedly
fell from a tank. Because both opinions appear to have been
offered by experienced physicians who examined the veteran
and were familiar with his medical history, the Board finds
that they are entitled to approximately the same probative
weight. There is thus an approximate balance of positive and
negative medical evidence on the issue of whether the
veteran's current low back disability is etiologically
related to an injury in service. Resolving the doubt on that
issue in the veteran's favor, the Board finds that the
veteran's low back disability was incurred in service. See
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303
(2004).
ORDER
Service connection is granted for a low back disability.
____________________________________________
F. Judge Flowers
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs